Law Delegated Legislation

Delegated legislation is law created with the authority of Parliament but it's not made by Parliament. The power to do this is given in the Enabling Act.

There are 3 types of delegated legislation:

• Orders in Council
• Statutory Instruments
• Bylaws

ORDERS IN COUNCIL

Made by Privy Council and the Queen. Cabinet Ministers are all Privy Councillors. The Privy Council is an honorary body set up to advise Monarch.

In practice government departments draft Orders in Councils. This effectively allows government to make legislation without going through Parliament.

Privy Council has power to make law in emergency under Emergency Powers Act. OIC used to alter Misuse of Drugs Act to change cannabis to Class C.

STATUTORY INSTRUMENTS

Made by government minister in respect to area of government for which they are responsible.Eg Minsiter for Transport deals with matters such as road traffic regulations.

Statutory instruments are useful to enable government departments to fill in details of law. Too time consuming to go to Parliament every time minor alterations are needed.

Major method of law making. About 3000 brought into force each year.

Serious Organised Crime and Police Act gives Secretary of State power to make regulations requiring equipment used Serious Crime Agency.

In addition to specific Acts giving Ministers powers to make Statutory instruments, this Act gives Ministers power to make any provision by order if it will remove or reduce burden resulting from legislation. 4 burdens are:

1.financial cost

2.administrative inconvenience 

3. obstacle to effiency, productivity or profability

4.sanction which affects the carrying on of any lawful activity.

BYLAWS

Made by local authorities for local matters eg parking restrictions.

Can also be made by public companies for matters within their jurisdiction eg London Underground has a bylaw banning smoking.

1.It saves time- Parliament does not have time to consider and debate small details

2.Parliament may not have sufficent knowledge- eg local parking regulations require local knowledge. It's impossible for Parliament to have all knowledge needed to draw up laws of the vast array of different topics in this modern day. Thought that Parliament should debate main principles and let small details be filled in by those with expert knowledge.

3. Consultation- Ministers have time to consult with others before regulations drawn up. Make sure it is accurate. Some Acts set out that there must be consultation before regulations are created eg Police and Criminal Evidence Act, any revisions to Code of Practice must have consultation with Law Society and police.

4.Flexibility- Law can be changed quickly. With an Act this can only change if replaced by another Act. This takes a long time. 

1. Takes law making away for publicly elected and allows non elected to make law. Seems unfair because law should be made by those public choose.

2.Law making authority is handed down a level. Could mean law is made by "mere" civil servants.

3.Large amount of delegated legislation means its hard to know what current law is.

4. Wording can be difficult to understand.

As delegated legislation is made by non elected people and there are so many people that have the power there needs to be some control over it. Control can come from Parliament or by the Courts.

CONTROL BY PARLIAMENT

Fairly limited though they do have inital control with the Enabling Act which sets boundries for which delegated legislation is made.

Affirmative resolutions- Small number of SI subject to this. Means SI will not become law unless its specifically approved by Parliament.  Strict control as it will not become law unless it is passed. For example affirmative resolution required before revisions to Code of Practice under Police and Criminal Evidence Act.

Disadvantage of this procedure is that Parliament cannot amend the Si. Can only approve, annul or withdraw it.

Negative resolutions- Most Si subject to it. Will become law unless rejected by Parliament within 40 days.Less than 2% of Si are actually considered at all.

Specialist Committees- The Scrutiny Committee ws set up to help Parliament check delegated legislation. It is made up of members from House of Lords and Commons. It's a more effective check. They draw attention to both Houses of Parliament to points that need futher consideration. Review is a techinical one and not based on policy. Main grounds for reffering a statutory instrument to Houses are:

1. imposes tax or charge- only elected body has right.

2. Has gone beyond powers given under enabling Act.

3. Its unclear of deffective

4. Powers of minister have been used in unusual way.

This ACt sets out procedure for making SI which are aimed at repealing an existing law in order to remove a burden. Under section 13, the Minister making SI must consult:

• organisations that are affected by proposals
• Welsh Assembly in realtion to matters which Assembly exercises function
• Law Commision where appropriate.

Orders made under this power of this Act must be laid before Parliament in 3 possible ways:

1.Negative resolution procedure

2.Affirmative resolution procedure

3. Super Affirmative Procedure

Super Affirmative procedure gives Parliament more control. Minister must take into account any representations, any resolution by Houses and any recommendations by a committee.

CONTROL BY THE COURTS

Deleagted legislation can be challenged in court on ground that its ultra vires ie goes beyond powers Parliament granted in enabling Act.

There are 3 types of ultra vires:

Procedural Ultra Vires- This is when there is a complaint that the procedure set out in enabling act have not been adhered to.

Shown in case of Aylesbury Mushrooms Ltd. An order was declared invalid because requirement to consult had not been met. Board should have consulted with Mushroom Growers but failed to do so.

Substantive Ultra Vires- is where it has gone beyond the powers.

Shown in Cure and Deeley case. Parent Act allowed Comissioners make regulations regarding collection of tax. They had made one that gave them power to set value of tex due when tax return was submitted late. This was declared invalid as they are only titled to collect tax.

3. Unreasonable Ultra Vires- Where rules made in delegated legislation are unreasonable. 

Shown in case of Stricland v Hayes Borough Council where a bylaw prohibited singing or reciting of obscene song and use of obscene language. Was held to be unreasonable as it was so widely drawn that it covered acts in private as well as public.